Simple Drug Possession and Diversion in Ontario

The short answer

Possessing a drug like cocaine for personal use is still an offence in Ontario. However, since 2022 the law has required police to consider a warning or a referral first, and prosecutors to consider alternatives before going ahead with a case. Many simple possession cases therefore end without a conviction. Understanding these rules can help you push for the outcome the law intends. This guide explains the penalties, the diversion rules and what happens to your record. See our drug offences page for an overview.

What simple possession means

Simple possession means having a Schedule I, II or III drug without legal authority, under s. 4(1) of the CDSA. You must know about the drug and have some control over it, but the drug does not have to be on your body. For example, drugs in your car or bedroom can be in your possession if you knew about them.

Cannabis is not covered by the CDSA. It is governed by the federal Cannabis Act and Ontario's cannabis laws.

What the Crown must prove

Penalties

When prosecuted by indictment, the maximum for a Schedule I drug, such as cocaine or fentanyl, is 7 years. The maximum for a Schedule II drug is 5 years less a day, and the maximum for a Schedule III drug is 3 years.

When prosecuted by summary conviction, a first offence carries up to a $1,000 fine, 6 months in jail, or both. A later offence carries up to a $2,000 fine, 1 year in jail, or both.

Diversion: warnings, referrals and prosecutor discretion

The CDSA says that problematic drug use should be treated mainly as a health and social issue (s. 10.1). This principle shapes how police and prosecutors must approach simple possession:

• Police: Officers must consider taking no action, giving a warning, or, with your consent, referring you to a program or agency (s. 10.2).
• Prosecutors: A prosecution should go ahead only where a warning, a referral or alternative measures would not be appropriate, and a prosecution is appropriate in the circumstances (s. 10.3).
• Records of warnings: Warnings and referrals cannot later be used as evidence of prior offending (s. 10.5).

Failing to consider these options does not cancel a charge on its own, but it is a strong point to raise with the prosecutor when asking for a withdrawal. Your lawyer can also point to any steps you have already taken, such as counselling.

What happens after you are charged

1. Release: Most people charged with simple possession are released by police with a court date.
2. First court date: Your lawyer can ask the prosecutor to consider diversion or a withdrawal at an early stage.
3. Diversion: If it is offered, you may complete a program, counselling or another task, after which the charge is withdrawn.
4. Resolution or trial: If diversion is not offered, the case may resolve another way or go to trial.

What happens to possession records

Simple possession convictions entered after the 2022 changes must be kept separate from other criminal records two years after the conviction or the end of the sentence, whichever is later. After that, you are treated as never having been convicted of that offence (s. 10.6). Older simple possession convictions must also be kept separate, but they are not treated as never having happened.

Treatment and health supports

If drug use is affecting your health, work or family, starting treatment early can help both your case and your life. Prosecutors and judges often give real weight to voluntary steps toward treatment, and proof of attendance at counselling or a program can support a request for diversion or a lenient outcome.

When possession becomes something more

If police believe you planned to sell or share the drugs, they may lay a charge of possession for the purpose of trafficking instead. That charge is far more serious. See CDSA 5(2).

Effects beyond the sentence

A simple possession conviction can still affect travel, because U.S. border officers can refuse entry to people with drug convictions, and even admissions of drug use. For non-citizens, a conviction can also have immigration consequences. Getting advice before you resolve the case is important.

Common defences

• No knowledge: You did not know the drugs were there.
• No control: The drugs were in a shared space, and the evidence does not show you controlled them.
• Unlawful search: Police breached your Charter rights when they found the drugs. See search and seizure in drug cases.
• Lab issues: The prosecutor cannot prove what the substance was.

Possible outcomes

What to do now

• Keep your court date and any fingerprint date.
• Gather proof of any counselling, treatment or support you have started.
• Do not discuss the case with police before you receive legal advice.
• Ask a lawyer to request diversion at the first court date.

Simple possession and young people

If the person charged was between 12 and 17 years old, the Youth Criminal Justice Act applies. Police must consider warnings, cautions and referrals before laying a charge, and youth records have strict limits on who can see them. See our youth criminal justice page.

How we can help

We can ask the prosecutor to use the diversion options the law requires them to consider, and work to protect your record. Call (647) 223-1980 for a free consultation.

Frequently asked questions